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Hon. Dan A. Polster United States District Judge Northern District of Ohio August 14, 2013

Federal Bar Association. The Pros and Cons of a Trial Judge as a Mediator. Hon. Dan A. Polster United States District Judge Northern District of Ohio August 14, 2013. Conventional Wisdom: A Trial Judge Should Not Mediate His/Her Own Cases.

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Hon. Dan A. Polster United States District Judge Northern District of Ohio August 14, 2013

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  1. Federal Bar Association The Pros and Cons of a Trial Judge as a Mediator Hon. Dan A. PolsterUnited States District JudgeNorthern District of Ohio August 14, 2013 www.fedbar.org

  2. Conventional Wisdom: A Trial Judge Should Not Mediate His/Her Own Cases • Danger of actually being influenced in trial rulings by what parties say or do during mediation • Perception of parties that the judge would be influenced by what was said or done during mediation • Perception of parties they are being pressured to settle the case • Parties will not be as candid with the trial judge as they would with another mediator Federal Bar Association www.fedbar.org

  3. What the Trial Judge Can Bring to Mediation that No One Else Can • Give parties a true “day in court” • Provide a reality check to both sides • Find out from the parties themselves what their real needs and interests are • The ability to stay with the mediation over time: many cases require multiple sessions and/or phone calls Federal Bar Association www.fedbar.org

  4. Rules that Should Apply to a Trial Judge When Mediating • Judge must have training and experience • Judge must be prepared • Never impose yourself on parties • Judge must not mediate bench trials • Make sure everyone in advance knows the ground rules for mediation • Judge must not reveal how he or she will resolve pending or upcoming legal issues Federal Bar Association www.fedbar.org

  5. Rules that Should Apply to a Trial Judge When Mediating • Judge should repeatedly state to the parties that they don’t have to settle the case today or ever, and if they don’t settle, the only negative consequences are those of the litigation process itself: uncertainty, cost and emotional toll • Be courteous to attorneys and parties • Be an effective and empathetic listener • Judge must be scrupulously fair in conducting the trial and in all legal rulings in the event the case does not settle Federal Bar Association www.fedbar.org

  6. The Pros and Cons of a Trial Judge as a Mediator • Questions? • Comments? Federal Bar Association

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